The Police, Crime, Sentencing and Courts Bill has prompted widespread concern. Coming so soon after a clash between the police and those who wished to hold a vigil in memory of Sarah Everard, news of whose disappearance and then death while walking home across London emerged the previous week, it is not surprising that it has focussed the public mind on the prominence of provisions which aim to curb public protest and protect inanimate statues, and the apparent lack of provisions designed to protect women from violence. There have been protests outside New Scotland Yard and in Parliament Square, with protesters shouting “kill the bill”. Debates in the House of Commons, where the bill had its second reading last week, were lively; but despite the strong opposition the government secured enough votes for the Bill to go forward to its House of Commons committee stage. Despite this, it appears that any further discussion of the Bill has been postponed, with no date set for this next stage. Perhaps the fact that it looked likely to provoke further protests of the very sort it proposes to deal with in so draconian a fashion may have had something to do with it. 

But the PCSC as it is being referred to is not just about police and protests. It is a massive piece of legislation into which the government has poured a heap of things relating to law and justice which it (or the Conservative Party of which it is formed, in its last election manifesto) had promised to do. The policy background to the Bill is described in the Explanatory Notes.

One section of it, as the title indicates, is concerned with the courts, and that is the bit we are concerned with in this blog post. There are two areas of interest to us. 

Problem-solving courts

The first is the introduction of provisions enabling the further development and evaluation of Problem-Solving Courts (PSCs). This comes in Part 7 of the Bill, which is broadly concerned with Sentencing and release of prisoners. PSCs are seen as part of the administration of community sentences providing what the government describes as 

“robust rehabilitation and support to offenders who can be both prolific and vulnerable. It places judges and magistrates at the centre of sentencing, rehabilitation and compliance, alongside a multidisciplinary team ranging from probation and health professionals, to police and broader service providers.”

According to the House of Commons Library research briefing on Part 7 of the Bill, a government white paper on PSCs referred to the success of the problem-solving approach demonstrated in the Family Drug and Alcohol Court (FDAC) for parents in family court proceedings. It also referred to models developed locally, giving the example of Greater Manchester, which runs a PSC-type approach for women as part of a local Whole System Approach to vulnerable women in the criminal justice system. 

The white paper also referred to an evidence review published by the Centre for Justice Innovation in 2016. This concluded:

“The evidence on family treatment courts and family drug and alcohol courts is good. It suggests that they are effective in reducing parental substance misuse and can reduce the number of children permanently removed from their families. 

The evidence on mental health courts is good. High-quality international evidence suggests that mental health courts are likely to reduce reoffending, although they may not directly impact offenders’ mental health. 

The evidence on the impact of problem-solving domestic violence courts on outcomes for victims, such as victim safety and satisfaction, is good. The evidence on their ability to reduce the frequency and seriousness of a perpetrator reoffending is promising. This is encouraging when set against the lack of other effective options for reducing reoffending by perpetrators of domestic violence. “

There does not seem to be any explicit relationship between PSCs and FDACs in the proposed legislation other than in the background materials, but it would make sense to adopt a more joined-up or overlapping approach to the kind of anti-social and behavioural problems, including drug and alcohol related mental health problems and domestic violence, that feature in both family and criminal courts, and which impact on child protection needs. 

What the Bill does provide for, in the criminal context, is such measures as: 

  • giving the court a power to regularly review community and suspended sentence orders and to initiate breach proceedings at a review hearing;
  • expanding the power to test for illicit substances outside the provisions of Drug Rehabilitation Requirements; and
  • enable the court to impose short custodial penalties for non-compliance.

The Bill will enable the new measures to be implemented in certain courts, for offenders who meet the particular eligibility criteria. The policy intention is to conduct a limited initial pilot, but the legislative changes will allow for the potential to enable the pilot to be rolled out to further courts in the future, and also allow for the pilot measures to be made permanent after the end of the pilot period.

Given that much of the talk around the Bill has concentrated on tougher sentencing and police powers, it is to be hoped that the more imaginative and creative solutions to crime represented by PSCs can not only be enacted but can also receive the funding necessary for their effective implementation. 

Transmission and recording of proceedings

Part 12 of the Bill is concerned with the courts and court procedures. This substantially re-enacts and extends some of the temporary provisions introduced by the Coronavirus Act 2020 designed to enable remote hearings to be live-streamed or recorded and to provide safeguards against unauthorised recording or broadcasting of such hearings. The policy objectives are described in the impact assessment as including: 

“Modify and make permanent the temporary provisions in the Coronavirus Act 2020 to: 

– extend the use of video and audio hearings and remote participation in hearings in the criminal jurisdiction; 

– ensure that video and audio hearings in all jurisdictions can be observed by members of the public but prohibit observers and participants from making unauthorised recordings or transmissions of these proceedings.”

The extension in the use of video in the criminal jurisdiction may be a reference to another policy objective, which is to “extend the use of Video Remand Hearings by empowering Prisoner Escort and Custody Service (PECS) offices to manage and oversee such hearings”. There have been concerns about how remote bail and remand hearings are conducted, with facilities in prisons and police stations often being inadequate to enable defendants to consult their lawyers or give instructions confidentially. It is not clear how well these concerns will be addressed. (The briefing paper cites, among others, comments by Transform Justice on the shortcomings of remote hearings in criminal cases, not just because of frequent IT failures but also by reasons of the lack of effective participation.) 

Open justice provisions

So far as the courts more generally are concerned, the main focus is on continuing to enable the conduct of remote and partly-remote hearings, and to enable access to reporters and public for hearings conducted as in open court. According to the explanatory notes: 

“Further measures [in the Bill] focus on permitting and facilitating the remote observation of proceedings across the courts and tribunals using video and audio links in order to uphold the principle of open justice. These measures will enable criminal, family and civil courts, coroners, unified tribunals, employment tribunals and the Competition Appeal Tribunal to provide transmissions of proceedings, by audio or video live link, either to designated premises or to individuals who have requested access and have identified themselves to the court or tribunal.”

The idea of transmitting proceedings “to designated premises” seems to hark back to the quaint notion, first introduced and discussed around the time of the Prisons and Courts Bill 2016, of relaying online hearings to “viewing booths” located in court buildings (referred to in that Bill as “designated live-streaming premises”), overseen by court staff to ensure no unauthorised photography or other contempt of court was being perpetrated. The need to trust the press and public to watch from their own socially distant locations during the pandemic would seem to have put paid to any such requirement, the number of detected abuses having been really quite low; but perhaps it has been retained out of an abundance of caution. Given the pressure of court buildings, the notion of devoting precious space to a viewing booth or room when people are now quite used to working remotely seems also rather extravagant. And in view of the strides already made in live-streaming (and catch-up viewing) of Supreme Court and Court of Appeal hearings, the proposed provisions for other courts and tribunals seem unduly timid and beset with “analog thinking”. 

Primary legislation

The intention is that the Bill will insert two new sections (section 85A and 85B) into the existing Courts Act 2003. Section 85A would provide for remote observation and recording of specified proceedings by direction of the court. It would cover the Court of Appeal, the High Court, the Crown Court, the Court of Protection, the county court, the family court, magistrates’ courts and coroner’s courts. Section 85B would provide for an offence of recording or transmission in relation to remote proceedings. Schedule 19 of the Bill would make corresponding provisions for various tribunals. 

In fact there are already sections 85A and 85B in the 2003 Act but they have only been inserted temporarily under the Coronavirus Act 2020. Their effect was considered by the High Court in the recent case of R (Good Law Project and others) v Secretary of State for Health and Social Care [2021] EWHC 346 (Admin) which we wrote about here: The PPE procurement case: transparency missed in both politics and law

(One of the disappointing consequences of the way the court interpreted the sections was to conclude that while it was possible to pre-record the hearing for the court’s own records, or to broadcast it live to the public, it was not possible to pre-record it and then broadcast it to the public — eg in the form of a catchup video, such as is already provided for under different legislation for the Supreme Court and Court of Appeal.) 

The Bill would replace these temporary versions of sections 85A and 85B with a permanent version. Given that the substance of these provisions was first drafted in the 2016 Prisons and Courts Bill that ran out of parliamentary time and was lost in the “washup” before the May 2017 election, the PCSC Bill will be “third time lucky” for these changes to be made on a permanent basis. 

Secondary legislation

But while the main powers are set out in the inserted sections, it’s important to note that the precise implementation of these provisions in relation to the various different courts will depend on secondary or delegated legislation (ie regulations or practice directions given effect by a Statutory Instrument). According to the explanatory notes: 

“Once enabled in secondary legislation these powers may allow open justice to be upheld in this way in various types of hearings: e.g. wholly remote hearings; hybrid hearings (i.e. those taking place in a court room with some participants joining via audio or video links), and traditional (wholly in-person) hearings. This secondary legislation will be made by the Lord Chancellor in concurrence with the Lord Chief Justice or the Senior President of Tribunals as appropriate.”

Further clarity on this cautious approach has come in a letter we received from Kate Gregory-Smith, the Deputy Director Courts, Tribunals and Transparency Policy at the Ministry of Justice, telling us that: 

“To allow for their prudent implementation, these powers will be enabled in future secondary legislation. This will allow time to carefully consider each jurisdiction and work with relevant stakeholders to ensure that these open justice measures work for each type of hearing. While this legislation will allow for variance across jurisdictions, the Bill will introduce a broad  framework to regulate the use of these powers: in each hearing, the decision to direct these transmissions will be taken at the discretion of the judge, magistrate or panel, who will determine how best to uphold the interests of justice on a case-by-case basis.”

The letter concludes with the assurance that 

“Our focus for these measures is to support the principle of open justice, both now (as our courts and tribunals continual to rely on digital technologies to recover from the impacts of the pandemic) and in the future, so that our legal system remains robust, responsive and transparent for years to come.”

So, whilst this appears to have significant potential for additional transparency in family courts, the fact that it will be the subject of secondary legislation means it is unclear what this will mean in practice for family proceedings.

Moreover, the way the legislation has been drafted indicates a clear intention to keep fairly tight control over who can access hearings remotely, and how: either by broadcasting to designated locations or by requiring those seeking access to identify themselves. There may be good practical reasons for this, but there also appears to be a level of “gatekeeping” of open justice which would not apply to the traditional public gallery in a physical courtroom, and which may go beyond what is necessary simply to prevent the risk of abuse (eg unauthorised recording, or disruptions such as “Zoom-boming”). What are the criteria for access decisions and will this be addressed in the secondary legislation? The potential for restricting access (eg by confining it to traditional or “accredited” media) was something to which we drew attention last year, along with further observations about the need for better monitoring and data collection of remote hearings, in an Open letter from NGOs and academics on open justice in the Covid-19 emergency . (See also: Covid-19, the UK’s Coronavirus Bill and emergency ‘remote’ court hearings: what does it mean for open justice? )

Parliament’s Joint Committee on Human Rights is calling for evidence on the Bill, and while the terms of reference do not appear to cover these open justice provisions under Part 12, we think they merit consideration as “other human rights concerns” and should be subject to further consultation. 

We have a small favour to ask! 

The Transparency Project is a registered charity in England & Wales run largely by volunteers who also have full-time jobs. We’re working hard to secure extra funding so that we can keep making family justice clearer for all who use the court and work within it. 

We’d be really grateful if you were able to help us by making a small one-off (or regular!) donation through our Just Giving page

Thanks for reading!